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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
THOMAS EDWARD GROVE,
Appellant No. 157 EDA 2016
Appeal from the PCRA Order November 30, 2015
In the Court of Common Pleas of Chester County
Criminal Division at No(s): CP-15-CR-0002493-2010
CP-15-CR-0003188-2010
BEFORE: PANELLA, J., OLSON, J., and STEVENS, P.J.E.*
MEMORANDUM BY STEVENS, P.J.E.: FILED June 16, 2016
Appellant, Thomas Edward Grove, appeals pro se from the order
entered in the Court of Common Pleas of Chester County dismissing his
petition filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A.
§§ 9541-46. We affirm.
The relevant facts and procedural history are as follows: Appellant
pled guilty to possession with the intent to deliver a controlled substance
and possession of a firearm prohibited.1 On September 27, 2011, he was
sentenced to an aggregate of eleven years to twenty-two years in prison.
Appellant filed neither a timely post-sentence motion nor a direct appeal.
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1
35 P.S. § 780-113(a)(30) and 18 Pa.C.S.A. § 6105(a)(1), respectively.
*Former Justice specially assigned to the Superior Court.
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On May 29, 2015, Appellant filed a pro se PCRA petition,2 and the trial
court appointed counsel to represent Appellant. On August 5, 2015, counsel
filed a petition seeking to withdraw his representation, and thereafter,
Appellant filed an amended pro se PCRA petition. By order entered on
October 9, 2015, the PCRA court provided notice of its intent to dismiss
Appellant’s PCRA petition, to which Appellant filed a pro se response. On
November 30, 2015, the PCRA court dismissed Appellant’s PCRA petition and
granted counsel’s petition to withdraw his representation. This timely pro se
appeal followed,3 and all Pa.R.A.P. 1925 requirements have been met.
“Our standard of review of the denial of PCRA relief is clear; we are
limited to determining whether the PCRA court’s findings are supported by
the record and without legal error.” Commonwealth v. Wojtaszek, 951
A.2d 1169, 1170 (Pa.Super. 2008) (quotation and quotation marks omitted).
Preliminarily, we must determine whether Appellant’s PCRA petition
was timely filed. See Commonwealth v. Hutchins, 760 A.2d 50
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2
Although Appellant’s pro se PCRA petition was docketed on June 1, 2015,
the record suggests Appellant handed it to prison officials on May 29, 2015.
Thus, under the prisoner mailbox rule, we shall deem Appellant’s PCRA
petition to have been filed on May 29, 2015. See Commonwealth v.
Patterson, 931 A.2d 710 (Pa.Super. 2007) (discussing prisoner mailbox
rule).
3
Although Appellant’s pro se notice of appeal was docketed on January 4,
2016, the prison envelope in which Appellant’s notice of appeal was mailed
bears a time stamp of December 23, 2015. Accordingly, pursuant to the
prisoner mailbox rule, we deem Appellant’s notice of appeal to have been
filed on December 23, 2015. See Patterson, supra.
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(Pa.Super. 2000). Pennsylvania law makes it clear that no court has
jurisdiction to hear an untimely PCRA petition. Commonwealth v.
Robinson, 575 Pa. 500, 837 A.2d 1157 (2003). The most recent
amendments to the PCRA, effective January 19, 1996, provide that a PCRA
petition, including a second or subsequent petition, shall be filed within one
year of the date the underlying judgment becomes final. 42 Pa.C.S.A. §
9545(b)(1). A judgment is deemed final “at the conclusion of direct review,
including discretionary review in the Supreme Court of the United States and
the Supreme Court of Pennsylvania, or at the expiration of the time for
seeking review.” 42 Pa.C.S.A. § 9545(b)(3).
The three statutory exceptions to the timeliness provisions in the PCRA
allow for very limited circumstances under which the late filing of a petition
will be excused. 42 Pa.C.S.A. § 9545(b)(1). To invoke an exception, a
petition must allege and the petitioner must prove:
(i) the failure to raise a claim previously was the result of
interference by government officials with the
presentation of the claim in violation of the Constitution
or the law of this Commonwealth or the Constitution or
law of the United States;
(ii) the facts upon which the claim is predicated were
unknown to the petitioner and could not have been
ascertained by the exercise of due diligence; or
(iii) the right asserted is a constitutional right that was
recognized by the Supreme Court of Pennsylvania after
the time period provide in this section and has been
held by that court to apply retroactively.
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42 Pa.C.S.A. § 9545(b)(1)(i)-(iii).
“A petition invoking one of these exceptions must be filed within sixty
days of the date the claim could first have been presented.”
Commonwealth v. Lawson, 90 A.3d 1, 5 (Pa.Super. 2014) (citation
omitted). “We emphasize that it is the petitioner who bears the burden to
allege and prove that one of the timeliness exceptions applies.”
Commonwealth v. Marshall, 596 Pa. 587, 947 A.2d 714, 719 (2008)
(citations omitted).
Instantly, Appellant was sentenced on September 27, 2011, and his
judgment of sentence became final thirty days later on October 27, 2011,
when the time within which to file an appeal to this Court expired. See 42
Pa.C.S.A. § 9545(b)(3); Pa.R.A.P. 903(a). Appellant, thus, had until October
27, 2012, to file a timely PCRA petition; however, Appellant filed the instant
PCRA petition on May 29, 2015, and therefore, it is patently untimely.
This does not end our inquiry, however, as Appellant attempts to
invoke the timeless exception of 42 Pa.C.S.A. § 9545(b)(1)(iii) relating to a
new constitutional right that applies retroactively. Specifically, he avers his
sentence is illegal under Alleyne v. United States, ___ U.S. ___, 133 S.Ct.
2151 (2013). Initially, inasmuch as Alleyne was decided on June 17, 2013,
and Appellant did not file his petition until May 29, 2015, we conclude that
Appellant has not pled or proven that he presented his claim within sixty
days of the date the claim could first have been presented. Moreover, as the
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PCRA court noted, this Court has held that Alleyne does not apply
retroactively to petitioners such as Appellant.4 Commonwealth v. Ruiz,
131 A.3d 54 (Pa.Super. 2015); Commonwealth v. Riggle, 119 A.3d 1058
(Pa.Super. 2015).
For all of the foregoing reasons, we affirm the PCRA court’s dismissal
of Appellant’s PCRA petition.
Affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/16/2016
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4
Additionally, to the extent Appellant attempts to present a timeliness
exception under Section 9545(b)(1)(iii) on the basis of Commonwealth v.
Hopkins, ___ Pa. ___, 117 A.3d 247 (2015), we note Hopkins did not
announce a “new rule;” but rather, it simply assessed the validity of 18
Pa.C.S.A. § 6317 (“Drug-free school zones”) under Alleyne, and concluded
that particular mandatory minimum sentencing statute is unconstitutional.
Moreover, neither our Supreme Court nor this Court has held that Hopkins
applies retroactively to collateral petitioners such as Appellant.
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